S. 27 Evidence Act | Discovery Can't Be Proved Against Person If He Wasn't Accused Of Any Offence & Wasn't In Custody Of Police At The Time Of Confession: Supreme Court

The Supreme Court has held that for a confession made to the police to be admissible under Section 27 of the Evidence Act, two essential conditions must be met: the individual must be 'accused of any offence,' and they must be in 'police custody' at the time the confession is made.

The Court firmly held that "being in 'the custody of a police officer and being 'accused of an offense' are indispensable pre-requisites to render a confession made to the police admissible to a limited extent, by bringing into play the exception postulated under Section 27 of the Evidence Act."

A 3 judge bench of the Supreme Court comprising Justices BR Gavai, Justice JB Pardiwala, and Justice Sanjay Kumar was hearing an appeal against a judgment of the Madhya Pradesh High Court that had affirmed the conviction and sentence of life imprisonment for Omprakash Yadav, while the death penalty for Raja Yadav and Rajesh Yadav in relation to kidnapping and murder of a 15-year-old boy.

The appellant Omprakash Yadav was convicted under Section 364A read with Section 120B of the Indian Penal Code (IPC), while Raja Yadav and Rajesh Yadav were held guilty under Section 302 IPC read with Section 120B and Section 364A read with Section 120B, respectively

The Court scrutinized the circumstances surrounding the recording of Rajesh Yadav's(appellant) confession, noting that the police had recorded his statement without formally arresting him. Consequently, he was not legally considered "accused of an offence" at that juncture. It was upon this contested confession that the discovery of the deceased's body was made.

The Court observed that at the time of the confession, the appellant Rajesh Yadav and his co-accused were not in "police custody."

In this context, the Court referred to Section 26 of the Indian Evidence Act, 1872, which stipulates that "no confession made by any person whilst he is in the custody of a police officer shall be proved against such person unless it is made in the immediate presence of a Magistrate."

Moreover, Section 27 of the same act, which acts as an exception to Section 26, states that "when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

The Court referred to the landmark case of Bodhraj alias Bodha v. State of Jammu & Kashmir (2002) 8 SCC 45, which stressed upon the reliability of information divulged by a prisoner in custody. It held that “this information, which would otherwise be admissible, becomes inadmissible under Section 26 of the Evidence Act as it did not come from a person in the ‘custody of a police officer’ or rather, came from a person not in the ‘custody of a police officer”. In other words, the exact information given by the accused ‘while in custody’, which led to recovery of the articles can be proved. It was noted that this doctrine is founded on the principle that if any fact is discovered as a search was made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true.”

Further strengthening its stance, the Court also cited the case of State of Karnataka v. David Rozario (2002) 7 SCC 728 where the Court reinforced that information admissible under Section 27 of the Evidence Act becomes inadmissible if it does not come from a person in the 'custody of a police officer' or comes from a person 'not in the custody of a police officer.' It rightly emphasized the significance of the information itself, rather than the police officer's opinion.

The Court also turned its attention to the case of Ashish Jain v. Makrand Singh (2019) 3 SCC 770 highlighting that an involuntary confessional statement of the accused is not admissible under Article 20(3) of the Constitution of India. While there is an embargo on accepting self-incriminatory evidence, if such evidence leads to the recovery of material objects related to a crime, it is typically considered to hold evidentiary value.

The Court noted that recently, in Boby v. State of Kerala 2023 LiveLaw (SC) 50, this Court referred to the decision of the Privy Council in Pulukuri Kotayya v. King Emperor (AIR 1947 Privy Council 67) and emphasized the crucial conditions of being "accused of any offense" and being in "police custody" to invoke Section 27 of the Evidence Act.

It had opined that “the condition necessary to bring Section 27 into operation is that the discovery of a fact in consequence of information received from a person ‘accused of any offense’ in the ‘custody of a police officer’ must be deposed to, and thereupon so much of the information, as relates distinctly to the fact thereby discovered, may be proved. It was observed that normally, Section 27 is brought into operation when a person in ‘police custody’ produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime, of which the informant is accused.”

In the case on hand, though Rajesh Yadav was taken to the police station, be it on 29.03.2013 or even earlier, he could not be said to be in ‘police custody’ till he was arrested at 18:30 hours on 29.03.2013, as he did not figure as an ‘accused’ in the FIR and was not ‘accused of any offence’ till his arrest.

Therefore, it was his arrest which resulted in actual ‘police custody’, and the confession made by him, before such arrest and prior to his being ‘accused of any offence’, would be directly hit by Section 26 of the Evidence Act and there is no possibility of applying the exception under Section 27 to any information given by him in the course of such confession, even if it may have led to the discovery of any fact.  

The Court applied these principles to conclude that “the purported discovery of the dead body, the murder weapon, and the other material objects, even if it was at the behest of Rajesh Yadav, cannot be proved against him, as he was not ‘accused of any offence’ and was not in ‘police custody’ at the point of time he allegedly. Needless to state, this lapse on the part of the police is fatal to the prosecution’s case, as it essentially turned upon the ‘recoveries’ made at the behest of the appellants, purportedly under Section 27 of the Evidence Act.”

Other reports about the judgment can be read here.

Case title: Rajesh v State of MP

Citation: 2023 LiveLaw (SC) 814

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